"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Sunday, August 2, 2015

Albany County District Attorney David Soares and why he is not being disbarred for misconduct that he was sanctioned for by a federal court

As I wrote on this blog, disciplinary proceedings against attorneys in New York State mostly target civil rights and defense counsel - and New York carefully conceals, as my recent FOIL request interaction, to put it mildly, with the NYS Court Administration's attorney Shawn Kerby indicated, statistics that would show this little slant in discipline.

Prosecutors are disciplined, if at all, very rarely, and even when they are disciplined, that is usually in response to some ongoing public scandal, the discipline is usually a slap on the wrist, and the State of New York does everything in its power to diminish and hide the fact that the discipline was ever imposed and what was it imposed for - as opposed to discipline upon defense attorneys which is publicized.

As an example, I can point out the discipline - and lack thereof - against Albany County District Attorney David Soares - as compared as to discipline, and what it was imposed for, against successful criminal defense attorney Terence Kindlon, Soares' frequent opponent and father of Soares' political opponent, attorney Lee Kindlon who ran for Soares' office in 2012.

Here are some interested public records showing why David Soares is so special that discipline for what he really did wrong does not reach him.

First of all, here is the biography of David Soares on the public, taxpayer-backed website of the Albany County District Attorney's office propounding Mr. Soares' integrity and "family values":

Let me remind you that Mr. Soares employs as an Assistant District Attorney the son of Albany County Family Court judge Susan Kushner Stephen Allinger (while Judge Susan Kushner, a judge of questionable integrity since the beginning of her judicial career, presides over Family Court child abuse cases where the District Attorney's office is a necessary party as a matter of law), which completely disqualifies Judge Kushner - but I doubt that Judge Kushner steps down from child abuse cases, and I doubt that the Albany County District Attorney's office seeks its own disqualification based on employment of Judge Kushner's son.

Let me remind you that Mr. Soares also employs as another ADA Anthony Cardona Jr., the son of the now deceased former Chief Judge of the Appellate Division Third Judicial Department Anthony Cardona.

Let me remind you that Anthony Cardona Jr. has a law firm where his law partner is the beloved niece of federal judge Mae D'Agostino Amanda Kurilyuk (and former partner of that same law firm, and attorney for David Soares in his individual capacity Mae D'Agostino, now a judge in the U.S. District Court in the Northern District of New York).

Anthony Cardona Jr. has been with David Soares' office for 14 years, according to his admission on his own law firm's website in his own official biography.

Thus, Anthony Cardona Jr. was hired by the Albany County District Attorney's office in 2001.

David Soares is the Albany County DA since 2004, also according to his own admission in his official biography on the District Attorney's website.

So, for 10 years, since 2001 to 2011, and for 7 years while David Soares was the Albany County District Attorney, the Albany County District Attorney's office employed as an ADA the son of the Chief Judge of the Appellate Division 3rd Judicial Department (who served on that court as the Chief Justice from 1994 till his death in 2011), the appellate court where the Albany County District Attorney litigated cases.

That includes the time of controversial overruling by the Cardona-father's court of disqualification of Cardona-son's employer on August 4, 2011, several months before Cardona-father's death and while he was still Chief Justice of the Appellate Division 3rd Department.

Let's note for the sake of fairness that Cardona-father did not preside over the petition for the writ of prohibition filed by Cardona-son's employer.

Yet, the rules of disqualification are strict, and the position of Cardona-father as a presiding justice of the appellate court, whether he was or was not on the actual panel, cast a huge taint on the determination of the court.

The taint got only worse since the judge who has actually rendered the opinion in favor of her own chief's son's employer, Judge Karen Peters, was named as a successor to Judge Cardona after his death.

Cardona-son's law firm, as I wrote on this blog before, embraced and employed the starry-eyed disgraced former judge kicked off the bench of the East Greenbush town court for fixing a traffic ticket ( which is a crime) who was neither disbarred nor prosecuted and whose judgeship (but not its disgraceful end) is advertised on the law firm's website as the disgraced former judge's asset.  Not to mention that the disgraced former judge in question formerly worked for Chief Administrative Judge for upstate New York Michael V. Coccoma and was an adviser to town courts on legal ethics.

Recently I checked, and, apparently after I extensively blogged about impropriety of employment of former disgraced judge Diane L. Schilling by MGuire Cardona law firm, Diane L. Schilling left the firm and is now employed at Napierski, Vandenburgh, Napierski & O'Connor, LLP, also in Albany, NY.  Please, note that there is no public discipline for an attorney who engaged in a traffic ticket-fixing scheme and was kicked off the bench for that.   

A big happy dynastic family, isn't it?  Nothing to do with integrity or any kind of duty of loyalty to the law, don't you think?

The interesting detail is where exactly now-judge Mae D'Agostino represented David Soares in his individual capacity.

Mae D'Agostino represented David Soares in a civil rights case filed against him for what can only be characterized as gross prosecutorial misconduct, and where, while represented by Mae D'Agostino, David Soares was found to have engaged in bad faith and spoliation of evidence (see decision posted in full below) and was ordered to pay over $29,000 in attorney's fees of his opponents (see decision posted in full below).

After David Soares escaped disbarment for his shenanigans, obviously because he knows - and employs - the right people, properly connected to the judiciary - his attorney Mae D'Agostino received a federal judgeship for life, her niece received a partnership in her former law firm also employing David Soares' subordinate ADA Anthony Cardona (son of the Chief Judge of the Appellate Division Third Department Anthony Cardona).

And, David Soares learnt that employing sons of judges pays off well, and employed another son of a judge, Stephen Allinger, son of judge Susan Kushner, after Kushner became a judge.  Smart move, Mr. Soares.

And David Soares' "censure" imposed upon him on May 9, 2012 by the Appellate Division 4th Department (somehow the Third Department recused - which the Third Department should have done, but did not do in Soares v Herrick, too), even though
mentioned on his attorney registration website, the website modestly conceals the link to the actual decision as to his discipline.

Compare with the link on Terence Kindlon's registration website about his public discipline, imposed without any discussion as to WHAT was it exactly that caught his attention in an e-mail and made him photograph it - whether it was undisclosed information that the prosecution had their duty to disclose or not. 

Mr. Kindlon, a war veteran, an attorney who is much older than David Soares, with a much more venerable record of public service, was not spared by the State of New York, and the link to his disciplinary decision is prominently on his registration website - unlike Mr. Soares who gets preferential treatement as a prosecutor even when the State of New York publicly announces that information about attorney discipline is now available on the website - but, apparently, not against prosecutors.

I will correct that error and publish the entire decision for discipline of David Soares.

Here it is, dated May 9, 2012.

Let's note that the only impropriety that the disciplinary court found is that David Soares criticized a judicial decision to disqualify him in a current case - that in New York warranted a public censure of the prosecutor.

Yet, here are decisions against David Soares by the Florida federal court as to his bad faith and spoliation of evidence, dated October 10, 2012, 5 months after the censure,

and a full decision by the Florida federal district court on attorneys fees as sanctions against David Soares dated December 21, 2012, 7 months after the censure.

And you know what is amazing?

That New York state courts and disciplinary committees, while prosecuting David Soares for criticizing a judicial decision during the pendency of a criminal case, completely disregarded discipline imposed upon Mr. Soares by a Florida federal court (where David Soares, apparently, did not employ any judge's offspring and thus suffered the discipline as required by law), right after David Soares was publicly censured.

No further disciplinary proceedings against David Soares occurred in New York, even though lying to the court and spoliation of evidence should have had him disbarred, which is the usual discipline New York disciplinary courts impose for lying to the court alone.

What is also amazing is that Terence Kindlon, a prominent criminal defense attorney from Albany, NY and a war veteran with a Purple Heart was sanctioned for so much as taking a picture of an admittedly inappropriate communication between the prosecutor and a former prosecutor - an action which did not warrant any discipline at all, while - coincidence! - Terence Kindlon's son Lee Kindlon was running against David Soares for the office of the District Attorney, and mentioning David Soares' public and private misconduct in his campaign and mentioning David Soares' centure in May of 2012 in his campaign.

Here is a report from that battle from a local Albany blogger, with multiple links to various interesting details.  It is an enlightening read.

Such reports in the media undoubtedly should have resulted in the investigation of David Soares.

Yet, it resulted in the discipline against his opponent's father, a decorated war veteran, and in no discipline against David Soares, not for impropriety in office, not for lying to the federal court and destroying evidence for which he was sanctioned.

But, I guess, David Soares is anything but usual.  He is special.  He knows the rules.  He employs the right people, with the right pedigree.  As a consequence of his "employment policies", he has friends in high places.

I guess, it pays to have friends in high places when you are a public prosecutor.

I guess, it pays to employ offspring of judges.

It pays.

And it has nothing to do with the declared lofty goals and claims of integrity. 

This is how prosecutorial "business" is done in the State of New York - and, Americans become increasingly aware, no thanks to the mainstream reporting but rather due to bloggers and social media, that this is the way prosecutors are handling their "business" across the country.

And that must change.

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